154
THE HONGKON WEEKLY PRESS AND
soner was brought before him and remanded for a week, and then again remanded for a .week, and then the order being r.ceived, the document I have just referred to was issued. I can find no justification in the Ordinance for this procedure, though the form of the actual warrant given in the schedule (which was not in fact used), seems to warrant it. Bat forms in schedules, for the very good reason that they are never quite so carefully drafted as they ought to be, are to be construed by the light of the Ordinance of which they form part. Sction | 8 does not require the fugitive to be brought up before the magistrate until the Governor's order is received. Of itself a remand warrant would not be such an order as the law requires, but apart from this an illegal remand warrant on have no such curative effect as is claimed for it in this case.
At every point; therefore, I am of opinion that the procedure traced ont by the Ordi. ance has not been complied with, and as I have said some of this procedure is zot mere form, but depends on principle, I am therefore of opinion that the writ of habers corpus should be made absolute and the prisoner discharged, We were invited to express our opinion on the fac's of the case whether not this orime which In Kai-shing said he will be tried for if he is extradited is or is not a political offence. We indicated to the learned Attorney-General that we did not desire him to proceed with this part of his argument, but would call on Sir Henry Berkeley to argue in favour of the contention of his client, should we think it necessary. I am not. Aud so far prepared to go further than this,
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WDS
as the question whether or not thers sufficient evidence to justify the magistrate in committing the prisoner, I can only repeat what I said during the hearing; it would require a very strong case indeed for me to differ in the first place from the learned magistrate, and in the second place from my learned brother, who has already expressed his opinion on the point as well as on the political question. It was for that reason that here also we did not wish to hear the learned Attorney-General any farther
on that point.
I think this disposes of all the points which were raised in argoment,
THE PUISNE JUDGE'S OPINION. Mr. Justice Wis said:-Iu Kai-shing o me before me in Novembor last ou a writ of habeas corpus and on hearing Counsel ou both sides I dischargel the rule. Tha case now comes before the Fall Court, in ous form as au appeal from my decisiou. I may stats at once that I entirely agree with that decision on the facts aud arguments as originally laid before me, but on the hearing fore the Full Court a number of new points were taken and I have no doubt that if the case had been laid before e then as it was subaquently I should have discharged the man, and these subso- quent proceedings would have been unnecessary.
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With referenca to the question of an antagel- ent engagement, I am still of opinion that the cases of Bavier and Alica Woodhall are not on all fours with the present ou a they only dealt with the question of legal provision and not with a raugem at or engagement
Lord Colarilgs (16 Cox the judgment of C. C. p. 487). However, I think that it koull bs better if t.be engagement WJB erly date, for if the receipt obtained at su of it is deferred to the last moment a might by handed over by mistake without any such engagement and without any chance of applying to the Court. In any case so far as the Court is aware there it no such engagement in I have already expressed existence at present. my opinion on the question of political offence and also as to whether the Magistrate was justified in committing, and need not repeit i'. It follows, therefore, that In Kai-shing entitled to his discharge,
COSTS AGAINST THE CROWN.
mra
Sir Henry Bark-l-y-1 would ask that the rule absolute be made with costs.
The Chief Justice- am afraid we cannot gira costs.
Sir Haury Berkeley - In the Court blow the action was di missed with costs,
The Chief Justica- We considered the
Cage.
qnea-
person
Sir Henry Berkeley-We are not asking for costs against the Crown but against the
person detaining him in prison, or against the in charge of Victoria Jail. No dubt the costs will be paid by the Crown for him.
The Chief Justice-Is there any authority? I should like to have som“,
[March 2, 1908.
His Worship-Oa the same charge. Defendant-[ was in Hongkong selling cigarettes all the time,
Mr. Bowley then put in the Governor's order, and Chief Detective Inspector Hanson Was called, and proved the arrest of the pris aer under the warrant.
The osse was reminded for a week.
A similar application on similar terms was granted in the case of Li Chung-ohan who was placed before the Court on a charge of armed robbery in the house of ip Kam at Kan Pin in the Namhoi district, Kwongtung, Chias. on February 13th, 1907,
Defendant pleaded not guilty, remarking that he was never at the village mentioned, and had been at Shanghai for two years.
The next case was one in which Wong Nin. sui was charged with the commission of armed robbery in China, and Mr. G. E. Morrell (of Messrs. Goldring Barlow and Morrell) appeared for the prisoner.
At
Mr. Bowley informed his Worship that the defendant was arrested under a provisional warrant on the 9.h October, and brought before his Worship or some other magistrate and re- manded from time to time. On October 24th the Governor issued an order. as required tion of costs against the Crown in a recent by the Chines. Extradition Ordinance of 1839, empowering his Worship to issue a warrant for the apprehension of the defendant. that time his Worship was of the opinion that a the man wis in custo ly it was not necessary to issue a further warrant, and the man was brought before the Court in the usual way a romand prisoner was brought before the Court. He was tried, and Mr. Bowley believed the evidence was closed and the case remanded from time to time in order that the decision of the Full Court in the cass of Iu Kai-shing might bi kuown. lu that case the Fall Court decided yesterday that the provisional war. raat in
Court for 80 the Polios many years was defective, and that the information on which it was based was also defective The Court also droided that in every oase, whether there had bisa au arrest before the Governor's order or unt, the magistrate must carry out the provisions of section 7 and issue a warrant or order under that section.
Sir Henry Berkeley - Yes there are a number of cases, and it is obviously unjust that the man should not get them when, as the Court has held, he has been illegally detained,
The Chief Justice-The order down below was against the applicant.
Sir Henry Berkeley-Certainly, and it was I would refer your discharged with costs. Lordships to 20, Queen's B»nch Division, section 37. I am the appellaut and ask for costs on the appeal and costs in the Court below where they were given against me.
The Chief Justice-We must look into the authorities.
The Attorney-General-I need scarcely say I am opposed to the application entirely. As a matter of fact, in the case which my learned friend o tes, the Court in its discretion, refused Costa.
The Court reserved its decision question.
on the
Sir Henry Berkeley then ask d their Lord. ships to order the prisoner to be forthwith discharged, and the Chief Justics informed him that he would be released as soo i as possible.
EXTRADITION CASES.
NAW PROCEDURY.
The learned Chief Justice has gone fully into all the points for future guidance in similar cases, so I shall simply coufine myself to one point, which seems to me to go to the root of the matter and entitles Iu Kai-shing to his disobarge. That point is counected with ection 743 of the Ordina ce. Section 7 says that on bafore Mr. F. A. Hız-land at the Police Court receipt of the Governor's order the Magistrale on February 26th to apply for the re-arrest ..f shall issue his warrant, or if the fugitive ! three Chiu-se on charges of the omission of criminal is already in custody, shall issue bis the crime of armed robbery in China. order, a form of which is given. It is clear to me that the words already in custody" refer to Section 8, and that therefore the Magistrate ought to have issued his order which he did not do. I do not agree with the argument that the words already in custody" mean in custody on some other charge, for the Magistrate would have had to issue his warrant on the
As an outcome of the decision of the Full Court regarding extradition proc«dur«, Mr. F. B. L. Brly, Crown Solicitor, appeared |
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Governor's order. Again the warrant which the Magistrate did issue under Section S for some reason is called a prov sions! warrant and the word "provisional," if it has any meaning, must mean that something additional is required to perfect it, viz., the order, which is absent here, so the warrant was never perfected. I do not think that the ren and orders of the Magistrate are equivalent to the orders referred
to in Section 7 and therefore I do not think that the procedure laid down in the Ordinance has been followed; therefore, I think that the man is illegally detained. Also, I do not think, that the original information was sufficient to ustify a warrant.
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The first application was with regard to Tan K'wei Tre 1 who appeared before the Court on a charge of armed robbery va April 25th, 19 5, in the Tez Kee shop at Loi Hoi, Shin- tung district, Kwongtung, China.
Mr. Bowly ssid his Worship would remember that the defendant was arrested under a provij
inal warrant which the Full X'urt had held to be defective, and the Givernor's order issued on November 11th, 1997, requiring his Worship, to whom the order was address-d, to issue bin warrant for the apprehension of the defendant Mr. Bowiny asked his Worship tɔ issue the
order under melion 7, and also a warrant under the same section for the apprehension of Tsu
K'wei Tai I
His Worship made an order in the terme of the application, and defendant was removed from the Court, re-arrested by Chief Detective in-
spector Hanson and placed again before the Court on the charge before mentioned. 1 Defendant pleaded not guilty, and wished to
know what he was arrested for,
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Mr. Bowley conclud-d by asking bis Worship to issue an order and a warrant under section 7 of the Ordiuano, 8ɔ that the man might be brought before him forthwith and dealt with under the Extradition Ordiusuce. e asked that both documents be issued because, from a perusal of the judgment of the learned judges of the Fail Court it was not quit› clear whether in a o(183 of this sort, when there was a doubt about the regularity of the arrest of the defendant, the order or the warrant was the proper documeut.
Mr. Morrel' opp sad the application, sub. now too late for his mitting that it was Worship to d› anything in Court. The section shall issue his war- *04 reeipt . read, ragt." His Worship received that order some four months ago, and nothing had ben doue. lis Worship would find it was too late now on randing the judgine it of the Full Court in la Ksi-shing's case yesterday. Part of it read The Lagi-lsture has tak-n the matter in hand, aud has indicated the proo-dure which may and That pro- must be adopted to give effect to it. cedure must be followed. I declius to subscribe to the doctrine, which is practically the argu. ment forced upon the Crown in this ouse owing to the practice which has grown up in the Colony, that suy procedure will do so long as the fugitive is chaght, and so long as some regular step is taken during the proceedings at some tims or other. The fugitive has a right then and there to come to the Court to be sit at
liberty, and I do not understand how, bioause some time must elapse before the matter din be fully g us into, that is to be looked upon us a prio of
grac, during which irregularities and put straight.” That informalities may b was exactly what his friend was asking bis Worship to do, the proceedings in the present dise, owing to a recent ju igment, were absolutely irregular, dud be ku mitted that the prisoner was entitled tå be-discharged. The information was bad, the warrant was held to be bad, and
the Full Court had held that those ir ogularities could not be cointegaãood. I, na cod His Worship to refuse the application and dis- charge the prisoner.